Citation Nr: 0509463
Decision Date: 03/30/05 Archive Date: 04/27/05
Citation Nr: 0509463
Decision Date: 03/30/05 Archive Date: 04/07/05
DOCKET NO. 03-17 656 ) DATE MAR 30 2005
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Portland,
Oregon
THE ISSUE
Entitlement to service connection for diabetes mellitus, type
II, claimed as due to exposure to herbicides.
REPRESENTATION
Veteran represented by: The American Legion
ATTORNEY FOR THE BOARD
S. Barial, Associate Counsel
INTRODUCTION
The veteran had active military service from February 1967 to
June 1969.
This matter comes to the Board of Veterans' Appeals (Board)
from a December 2002 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Portland,
Oregon, which denied service connection for diabetes
mellitus, type II, claimed as due to exposure to herbicides.
The veteran was scheduled for a January 2004 Board hearing
via videoconference, but failed to report.
VACATUR
The Board remanded this claim in March 2004 for further
development. After the additional development was
accomplished, the case was certified to the Board in
September 2004. Thereafter, the Board denied the veteran's
claim of entitlement to service connection for diabetes
mellitus, type II, claimed as due to exposure to herbicides,
in a November 18, 2004 decision, and returned the veteran's
claims folder to the RO.
The record reflects that, in January 2005, the veteran filed
a motion to reconsider the November 2004 Board decision
because he wanted recent VA treatment records added to his
claims file. The Board subsequently received VA clinical
records dated from October 2004 to February 2005. Although
the Board previously had no actual knowledge of these
records, judicial precedent holds that VA is held to be in
"constructive possession" of existing VA medical records.
See Bell v. Derwinski, 2 Vet. App. 611 (1992). These VA
medical records, therefore, are presumed to have been before
the Board at the time of the Board's November 2004 decision.
By letter dated March 29, 2005, a Deputy Vice Chairman (DVC)
of the Board advised the veteran and his representative that
his motion for reconsideration was being denied as moot. The
DVC further advised that the Board's decision of November
2004 would be vacated and a new decision would be issued,
taking the identified medical records into consideration.
The Board may vacate an appellate decision at any time when
the veteran has been denied due process. 38 U.S.C.A.
§ 7104(a) (West 2002); 38 C.F.R. § 20.904 (2004). Therefore,
in order to assure due process of law, the Board will now
vacate the November 18, 2004, decision which was rendered in
the instant appeal. A subsequent decision will be issued in
its place.
ORDER
The Board's decision of November 18, 2004, which denied the
veteran's claim of entitlement to service connection for
diabetes mellitus, type II, as a result of exposure to
herbicides, is hereby vacated.
___________________________
ANDREW J. MULLEN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
Citation Nr: 0430730
Decision Date: 11/18/04 Archive Date: 11/29/04
DOCKET NO. 03-17 656 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Portland,
Oregon
THE ISSUE
Entitlement to service connection for diabetes mellitus, type
II, claimed as due to exposure to herbicides.
REPRESENTATION
Veteran represented by: The American Legion
ATTORNEY FOR THE BOARD
S. Barial, Associate Counsel
INTRODUCTION
The veteran had active military service from February 1967 to
June 1969.
This matter comes to the Board of Veterans' Appeals (Board)
from a December 2002 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Portland,
Oregon, which denied service connection for diabetes
mellitus, type II, claimed as due to exposure to herbicides.
The veteran was scheduled for a January 2004 Board hearing
via videoconference, but failed to report.
FINDINGS OF FACT
1. The veteran served in the Republic of Vietnam during the
Vietnam era, and thus is presumed to have been exposed to
herbicides in service.
2. The medical evidence of record shows no diagnosis of
diabetes mellitus, type II.
CONCLUSION OF LAW
Diabetes mellitus, type II, was not incurred in or aggravated
by service, nor may it be presumed to have been incurred
therein. 38 U.S.C.A. §§ 1110, 1116, 1153, 5103A, 5107 (West
2002); 38 C.F.R. §§ 3.303, 3.307(a)(6), 3.309(a)(e) (2004).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Duties to Assist and Notify
The Veterans Claims Assistance Act of 2000 (VCAA), now
codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107,
5126 (West 2003); 38 C.F.R. §§ 3.102, 3.156(a), 3.159,
3.326(a) (2004) redefined the obligations of VA with respect
to the duty to assist, and imposed on VA certain notification
requirements. The final regulations implementing the VCAA
were published on August 29, 2001, and they apply to most
claims for benefits received by VA on or after November 9,
2000, as well as any claim not decided as of that date. 38
C.F.R. § 3.159 (2004).
The United States Court of Appeals for Veteran Claims (CAVC)
in Pelegrini v. Principi, 18 Vet. App. 112 (2004), held, in
part, that a VCAA notice, as required by 38 U.S.C. § 5103(a),
must be provided to a claimant before the initial unfavorable
agency of original jurisdiction (AOJ) decision on a claim for
VA benefits, and that the VCAA notice consistent with 38
U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform
the claimant about the information and evidence not of record
that is necessary to substantiate the claim; (2) inform the
claimant about the information and evidence that VA will seek
to provide; (3) inform the claimant about the information and
evidence the claimant is expected to provide; and (4) request
or tell the claimant to provide any evidence in the
claimant's possession that pertains to the claim, or
something to the effect that the claimant should provide any
evidence in his possession pertaining to the claim. See
VAOPGCPREC 7-2004 (July 16, 2004).
A. Duty to Notify
In this case, the agency of original jurisdiction notified
the veteran of the information and evidence necessary to
substantiate the claim and the respective responsibilities of
each party for obtaining and submitting evidence. This was
accomplished by way of an October 2001 VA letter, which was
prior to the December 2002 rating decision.
The RO notified the veteran of the responsibilities of VA and
the veteran in developing the record. Specifically, the RO
notified the veteran that VA would obtain all relevant
evidence in the custody of a federal department or agency.
The RO notified the veteran of his responsibility to respond
in a timely manner to VA's requests for specific information
and to provide a properly executed release so that VA could
request the records for him. The RO also requested the
veteran to advise VA if there was any other information or
evidence he considered relevant to his claim for service
connection for diabetes mellitus, type II, as a result of
exposure to herbicides, so that VA could help by obtaining
that evidence.
The RO notified the veteran why he was not entitled to
service connection for diabetes mellitus, type II, as a
result of presumed exposure to herbicides in the December
2002 rating decision, the May 2003 statement of the case, and
the May 2004 supplemental statement of the case. The RO
notified the veteran of the laws and regulations pertaining
to service connection and provided a detailed explanation as
to why service connection was not warranted for diabetes
mellitus, type II, as a result of exposure to herbicides
under the applicable laws and regulations based upon the
evidence provided.
Upon a review of the claims folder, the Board finds that the
veteran and his representative were notified of the evidence
and information necessary to substantiate his claim for
service connection; were notified of the respective
responsibilities of him and VA as it pertained to who was
responsible for obtaining such evidence; and also were
notified to submit all relevant evidence he had to the RO.
Thus, the Board concludes that the duty to notify the veteran
has been satisfied under 38 U.S.C.A. § 5103; 38 C.F.R. §
3.159.
B. Duty to Assist
VA also must make reasonable efforts to assist the veteran in
obtaining evidence necessary to substantiate the claim for
the benefit sought, unless no reasonable possibility exists
that such assistance would aid in substantiating the claim.
38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2004).
In the present case, the evidence includes service medical
records, private examination reports dated in May 2000 and
June 2000, and a May 2001 VA examination report. The Board
finds that there are no additional medical treatment records
necessary to proceed to a decision in this case.
In addition, in a claim for disability compensation, VA will
provide a medical examination or obtain a medical opinion
based upon a review of the evidence of record if VA
determines it is necessary to decide the claim, pursuant to
38 C.F.R. § 3.159(c)(4). Here, VA provided a medical
examination in April 2004, and the examiner rendered a
considered medical opinion regarding the pertinent issue in
this matter.
In light of the foregoing, the Board is satisfied that all
relevant facts have been adequately developed to the extent
possible; no further assistance to the veteran in developing
the facts pertinent to the issue of service connection is
required to comply with the duty to assist under the VCAA.
38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159.
II. Analysis
The veteran filed a claim of service connection for diabetes
mellitus, type II, on the basis of exposure to herbicides in
Vietnam. In support of his claim, the veteran contends that,
in 2000, his doctor told him he had borderline diabetes
mellitus, type II. He notes that he experiences stomach
problems and was told his symptoms are consistent with
diabetes mellitus, type II. Thus, the veteran asserts that
his exposure to herbicides in service lead to diabetes
mellitus, type II, and that he is entitled to disability
compensation.
Service connection may be granted for a disability resulting
from personal injury suffered or disease contracted in the
line of duty, or for aggravation of a pre-existing injury or
disease in the line of duty. 38 U.S.C.A. § 1110; 38 C.F.R.
§§ 3.303, 3.304, 3.306. Service connection also may be
granted for any disease diagnosed after discharge, when all
the evidence, including that pertinent to service,
establishes that the disease was incurred in service. 38
C.F.R. § 3.303(d).
The U.S. Court of Appeals for Veterans Claims (Court) has
held that in order to prevail on the issue of service
connection on the merits, there must be medical evidence of a
(1) current disability; (2) medical, or in certain
circumstances, lay evidence of in-service incurrence or
aggravation of a disease or injury; and (3) medical evidence
of a nexus between the claimed in-service disease or injury
and the present disease or injury. Hickson v. West, 12 Vet.
App. 247, 253 (1999).
A veteran who, during active military, naval, or air service,
served in the Republic of Vietnam during the period beginning
on January 9, 1962, and ending on May 7, 1975, shall be
presumed to have been exposed during such service to an
herbicide agent, unless there is affirmative evidence to
establish that the veteran was not exposed to any such agent
during that service. 38 U.S.C.A. § 1116(f); 38 C.F.R.
§ 3.307(a)(6)(iii).
A veteran who was exposed to an herbicide agent during active
military, naval, or air service, and acquires certain
diseases, including diabetes mellitus, type II, to a degree
of 10 percent or more at any time after service shall be
service-connected even though there is no record of such
disease during service. 38 C.F.R. §§ 3.307(a)(6); 3.309(e).
The DD Form 214 shows the veteran served in Vietnam from
February 1967 to June 1969, thus herbicide exposure is
presumed. See 38 U.S.C.A. § 1116(f); 38 C.F.R.
§ 3.307(a)(6)(iii). However, although the record shows that
the veteran served in Vietnam during the requisite period,
and exposure to herbicides is thus presumed, the record shows
no medical diagnosis of diabetes mellitus, type II. The
service medical records are also negative for any reports of
diabetes mellitus.
A May 2000 private examination report shows a repeat sugar at
137, evidently on a fasting basis.
A June 2000 private examination report shows glucose
intolerance and diagnosis of borderline diabetes mellitus,
type II. The report also shows notation of a May 30, 2000,
glucose tolerance test, which indicates a fasting glucose of
108, but at one hour, sugar was 238; at two hours, it was
157. The examiner noted that the hemoglobin AlC test was
normal at 5.8. The report shows a recommendation for the
veteran to cut out sugar and to lose weight.
A May 2001 VA examination report shows a diagnosis of
borderline diabetes mellitus, type II.
On an April 2004 VA examination report, the examiner noted
that the criteria for a diagnosis of diabetes are either a
fasting blood glucose of 126 or greater on two separate days;
or random blood sugars over 200 on consecutive days; or a
hemoglobin AlC over seven.
The examiner noted an April 24, 2000, non-fasting random
blood sugar of 144; and a May 18, 2000, random blood sugar of
137. He noted that neither of these was above 200, as
discussed above. The examiner also noted a May 30, 2000,
fasting blood sugar entirely in normal range at 103, and a
hemoglobin AlC, which was in the non-diabetic range at 5.8;
but that the two-hour glucose tolerance test did show one of
the three post-glucose load sugars to be above 200. The one-
hour post glucose load was 238. The examiner noted that the
other post glucose readings were not in a range sufficient to
diagnose diabetes. He found that a single postprandial
reading during a glucose tolerance test in the diabetic range
is not adequate to establish a diagnosis of diabetes. He
also found that the term "borderline diabetes" is not
relevant.
The April 2004 VA examination report also shows notation of
an eye examination 10 days previously which was negative for
any diabetic type of eye changes, and showed no kidney
problems. The examiner noted that the veteran denied any
problem with erections; and had no problem with the nerves to
the hands and feet; no amputations or ulcers; no coronary
artery disease; cerebrovascular disease; peripheral vascular
disease or diabetic gastroparesis; and no evidence of any
complications typical for diabetes.
Thus, upon review of the claims file, the April 2004 VA
examiner did not find any laboratory abnormalities present in
the medical records which meet the criteria for a diagnosis
of diabetes.
Although the record shows presumptive evidence of in-service
exposure to herbicides, and subjective complaints of stomach
problems, service connection cannot be granted if there is no
present disease associated with herbicide exposure.
38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304, 3.306,
3.307(a)(6), 3.309(e). The Court has held that a condition
or injury occurred in service alone is not enough; there must
be a current disability resulting from that condition or
injury. See Rabideau v. Derwinski, 2 Vet. App. 141, 144
(1992); Chelte v. Brown, 10 Vet. App. 268, 271 (1997). In
the absence of proof of a present disability, there can be no
valid claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225
(1992).
The Board notes the veteran's argument that he has diabetes
mellitus, type II, as a result of his in-service exposure to
herbicides. This determination, however, is not a matter for
an individual without medical expertise. See Espiritu v.
Derwinski, 2 Vet. App. 492 (1992). Thus, while the Board has
considered the veteran's lay assertions, they do not outweigh
the medical evidence of record, which shows no diagnosis of
diabetes mellitus, type II. A competent medical expert makes
this opinion, and the Board is not free to substitute its own
judgment for that of such an expert. See Colvin v.
Derwinski, 1 Vet. App. 171, 175 (1991).
Thus, the claim of service connection for diabetes mellitus,
type II, as a result of exposure to herbicides is denied.
38 C.F.R. §§ 3.303, 3.307(a)(6), 3.309(e), 3.310(a). In
making this decision, the Board has considered the benefit-
of-the-doubt doctrine, but it does not apply here because the
evidence is not in approximate balance. Gilbert v.
Derwinski, 1 Vet. App. at 57-58; 38 U.S.C.A. § 5107(b); 38
C.F.R. § 3.102.
ORDER
Entitlement to service connection for diabetes mellitus, type
II, as a result of exposure to herbicides is denied.
___________________________
ANDREW J. MULLEN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs